Stephanie Harmon

Oregon Supreme Court

Criminal Procedure: In determining whether a defendant's words constituted an unequivocal invocation of the right against self-incrimination under Article I, section 12, a reviewing court must consider those words, in context of the totality of the circumstances existing at the time of and preceding their utterance, to determine whether a reasonable officer would have understood that the defendant was invoking that right.

Corporations: ORS 63.165 immunizes members and managers of an LLC from vicarious liability for the debts, obligations, and liabilities of that LLC. LLC members and managers, however, remain personally liable for acts and omissions to the extent those acts or omissions would be actionable against the member or manager if that person were acting in an individual capacity.

Criminal Procedure: A defendant's voluntary consent to search, following unlawful police conduct, may nevertheless require suppression of evidence obtained during the search if the police exploited their unlawful conduct to gain that consent. In exploitation analysis, Courts must consider the totality of the circumstances including the nature of the illegal conduct, as well as its purpose and flagrancy, without unduly emphasizing any single consideration.

Post-Conviction Relief: ORS 138.580 requires a petitioner to attach materials, including the petitioners own averments of fact, that address each element of each asserted ground of relief and that, if presumed true, would permit the post-conviction court to determine that the petitioner was entitled to post-conviction relief on that ground.

Post-Conviction Relief: By codifying the common-law lawyer-client privilege, the legislature has given clients a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between clients and their lawyers. The remedy for release of such information is mandamus.

Juvenile Law: ORS 419B.875(2) provides in part that the rights of the parties include, but are not limited to the right to call witnesses, cross-examine witnesses and participate in hearings. A party’s right to participate includes the right to testify on the party’s own behalf.

Professional Responsibility: Disbarment is an appropriate sanction when a lawyer engages in serious criminal conduct and when a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.

Post-Conviction Relief: To prevail on a claim of inadequate assistance of counsel, a petitioner must prove by a preponderance of the evidence that legal counsel failed to exercise reasonable professional skill and judgment based on the law at the time counsel acted and that deficient performance had a tendency to affect the outcome of the prosecution.

Criminal Law: Custody imposed as a result of a post-prison supervision violation after incarceration for a sentence that has been served is not escape from custody imposed as a result of felony conviction.

Land Use: Notice of intent to appeal is effectively filed, for purposes of determining the timeliness of a motion to intervene under ORS 197.830(7) by a person required under OAR 661-010-0015(2) to be served with the notice, on the date of that service.

Juvenile Law: Conviction under ORS 162.375 must be supported by evidence that defendant initiated a false report, rather than mere evidence that a defendant initiated a process that later resulted in that person giving false information about a true incident to police.

Criminal Procedure: Based on the text, context, and legislative history of the term "tampering," for the purposes of ORS 164.345(1), to "tamper" requires conduct that alters, rearranges, or changes property in a way that has an adverse effect on the property or its use.

Appellate Procedure: Under ORS 138.050(1), except as otherwise provided in ORS 135.335, concerning conditional pleas, a defendant who has plead guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition: (a) exceeds the maximum allowable by law; or (b) is constitutionally cruel and unusual.

Attorney Fees: A court cannot impose fees based on pure speculation that a defendant has funds to pay the fees or may acquire them in the future. The State bears the burden of proving that the defendant is or may be able to pay attorney fees.

Parole and Post-Prison Supervision: Under the matrix system, once the board sets an inmate's initial parole release date, the board may postpone that date only if, among other reasons, the inmate has a present severe emotional disturbance such as to constitute a danger to the health and safety of the community.

Indian Law: When an Indian child is involved, DHS must show that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful.

Evidence: Evidence of prior, uncharged misconduct, is not admissible to prove the character of a person in order to show that the person acted in conformity therewith; such evidence of prior acts may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of prior, uncharged misconduct may also be used to impeach the credibility of the defendant's testimony.

Evidence: For hearsay to qualify as an excited utterance, three requirements must be satisfied: (1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement must relate to the startling event or condition.

Civil Stalking Protective Order: The standard set by ORS 30.866(1) also applies to non-expressive contact. In order for a non-expressive contact to apply, the petitioner must prove that the communication instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.

Criminal Procedure: ORS 162.295 requires that, in the absence of a pending proceeding at the time of the tampering, a person must have knowledge of a proceeding that is about to be instituted. Knowledge of a proceeding that is about to be instituted is not the same as a hope for a proceeding to be instituted at some indefinite point in the future.

Criminal Law: Under the Hall test, if there is a causal connection between unlawful police conduct and the discovery of evidence, the evidence cannot be admitted unless the State proves that its discovery was independent of, or only tenuously connected to, the illegal stop.

Attorney Fees: Under ORS 151.505 and ORS 161.665, a trial court may order a defendant to pay court-appointed attorney fees and other costs. However, in order for a court to do so, there must be evidence that defendant is, or may be, able to pay the fees and costs.

Appellate Procedure: To justify a new trial under ORCP 64 B(4), newly discovered evidence must meet the following six requirements: (1) it must be such as will probably change the result if a new trial is granted; (2) it must be such as, with reasonable diligence, could not have been discovered before or during the trial; (3) it must be such that it cannot, with reasonable diligence, be used during trial; (4) it must be material to an issue; (5) it must not be merely cumulative; and (6) it must not be merely impeaching or contradicting of former evidence.

Family Law: In reviewing a juvenile court's judgment, the court views the evidence, as supplemented and buttressed by permissible derivative inference, in the light most favorable to the juvenile court's disposition and asses whether, when so viewed, the record was legally sufficient to permit that outcome.

Criminal Procedure: The focus in determining whether an issue has been adequately preserved in a particular case is whether a party has given opponents and the trial court enough information to be able to understand the contention and to fairly respond to it.

Civil Procedure: In situations in which a party puts itself in a position of needing to seek the services of a different attorney before or during trial, a court does not abuse its discretion in denying a motion for a continuance.

Criminal Procedure: Under Article I, section 9 of the Oregon Constitution governing privacy rights with respect to personal effects, extraction and testing of a dog's blood is a "search" because those actions constitute a physical invasion of a defendant's personal property which reveal otherwise concealed evidence.

Criminal Law: The state of mind of an arresting officer is not relevant to a self-defense analysis and risks confusing the jury, which instead must evaluate the defendant's reasonable belief as to the circumstances.

Criminal Procedure: For purposes of ORS 135.703 and ORS 135.705, the ‘person injured’ who must participate in a valid civil compromise is the person or persons directly injured by the acts criminalized by the statute under which a defendant is charged.

Sentencing: In order to justify the imposition of a downward departure sentence, ORS 137.712(2)(d)(B) requires a defendant to prove that representation of being armed with a dangerous weapon did not reasonably put the victim in fear of imminent significant physical injury.

Criminal Procedure: Generally, a party is entitled to have a proposed jury instruction given if the instruction properly states the law applicable. However, a trial court does not err in declining to give a correct instruction that is fully covered by the trial courts other instructions.

Juvenile Law: ORS 419B.476(2)(a) requires that the juvenile court determine whether DHS has made reasonable efforts and whether the parent has made sufficient progress to make it possible for the ward to return safely home.

Property Law: The interpretation of an express easement is a question of law to be decided by the courts. In construing an easement, a court's task is to discern the nature and scope of the easement's purpose and to give effect to that purpose in a practical manner.

Criminal Procedure: In issuing a warrant, the magistrate could reasonably conclude that the totality of the facts set out in the affidavit, separate from the informant's allegations, sufficiently corroborated the anonymous informant's statements.

Family Law: Once a court's child-custody determination has been memorialized in a dissolution judgment, the presumption in ORS 109.119 that the legal parent acts in the best interest of the child would have no effect in any subsequent modifications under ORS 107.135 which requires there to be a substantial change in circumstances before a court can consider whether to modify custody.

Criminal Procedure: Discovery of an outstanding warrant for a defendant's arrest purges the taint of prior unlawful police conduct that might otherwise require suppression of evidence obtained as a result of an arrest on the warrant.

Workers Compensation: The wage earning agreement between a worker and his or her employer may be a general agreement reflecting the payment aspect of the parties employment relationship, even if that agreement contemplates that the employee will be assigned to various jobs that will involve differing pay rates and hours.

Criminal Procedure: A trial court's statement to counsel that there is, "no issue here as to venue," in the presence of the jury is not an abuse of discretion where the jury is otherwise instructed that venue is a material element.